Philip Morris has, with mixed success, removed suits relating to the design and marketing of “light” cigarettes to Federal Court based on the contention that they were operating under the dictates of the FTC; hence, the claims are effectively challenges against the Government’s method for testing and labeling cigarettes; and, therefore, because Philip Morris is simply carrying out the dictates of the Federal Government, the company was “acting under” an officer or agency of the U.S. for jurisdictional purposes, as provided in 28 U.S.C. 1442(a)(1). The U.S. Supreme Court, in a unanimous decision, rejected this argument. The Court rejected the argument that the company was analogous to a government contractor because a private contractor “is helping the government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks.” Addressing the issue of whether the FTC delegated the authority for testing tar and nicotine levels to the industry in 1987, the Court put aside, for the sake of argument, the fact that the plaintiffs were challenging the way in which Philip Morris designed its cigarettes, not the way in which it or others in the industry conducted cigarette testing. The Court then noted that “we have found no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the Government agency’s behalf.” A private company’s “compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official.’” See Watson v. Philip Morris, No. 05-1284 (June 11, 2007).
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